-Women are subjected to the gendered myths and misconceptions that persist in the family law system, such as that women falsify allegations of violence to be vindictive or to alienate fathers from their children, and that family violence ends at separation.

When the federal government tabled Bill C-78 in May 2018—proposed legislation that would drastically change, the Divorce Act—we participated in consultations about how the proposed amendments could be improved to better account for the lived experiences of women.

The Divorce Act, enacted in 1985 and left largely unchanged over the past 20 years, is in desperate need of reform. Indeed, we are encouraged by many aspects of the proposed legislation, including:

The aim to improve the efficiency and cost-effectiveness of family law disputes, and the focus on addressing family violence and reducing poverty.

By contrast and in recognition of these risks, the BC Family Law Act not only excludes the maximum parenting provision but also directs the court to not presume that the sharing of parenting time is in the child’s best interest.

While the Bill still has to go through its third reading in the House of Commons before it moves to the Senate and again goes through review, the Bill will likely pass in its current form and it is worth assessing how the amendments stack up from a gender-equality perspective.

Here are four key amendments we are closely watching:

1. The Bill provides significant guidance on how courts should determine what is in the best interest of the child. It prioritizes the child’s safety and well-being, and also provides an extensive, though not exhaustive, list of factors for courts to consider when filing parenting orders. The list includes:

-The child’s relationship with people who play an important role in the child’s life, including grandparents and siblings;

-The child’s views and preferences;

-The child’s heritage, including Indigenous upbringing and heritage; and

The list also includes reference to the willingness of a spouse to communicate and collaborate with the other spouse. We believe this consideration is particularly problematic in the context of family violence. The result could be mandated contact that could place the mother and child at great risk of harm.

We believe that the list could also benefit from a subsection that recognizes that keeping mothers safe is also in the best interest of the child.

2. The Bill includes a definition of family violence that rightfully sets out an extensive list of conduct that amounts to family violence. It also recognizes that violence may manifest through a pattern of coercive and controlling behaviour. While this definition is an important step in the right direction, it could be improved if:

-The list of conduct amounting to family violence was not exhaustive

-The definition recognized the gendered nature of family violence, including the systemic power imbalances between men and women; and

-It included a list of myths and misconceptions relevant for courts to consider when determining the existence and impact of family violence.

Mediation can be inappropriate where there is family violence, not only because it encourages continued contact between spouses but also because of the gendered power imbalance that exists between spouses in the context of family violence.

3. The Bill wrongfully retains the maximum parenting time principle as a separate provision outside of the list of factors for determining the best interests of the child. This principle has meant that courts are likely to order maximum contact in all but the most extreme cases. This reality acts to discourage women from reporting family violence because they do not want to risk the court dismissing their honesty as an attempt to alienate the father.

By contrast and in recognition of these risks, the BC Family Law Act not only excludes the maximum parenting provision but also directs the court to not presume that the sharing of parenting time is in the child’s best interest.

4. The Bill places a duty on the parties to the proceeding to attempt family dispute resolution and a duty on their legal advisers to encourage family dispute resolution unless it is inappropriate to do so. This often means that people going through a divorce will feel obligated to participate in mediation and that those advising them will feel obligated to encourage mediation even where there is family violence.

Any legislation that places a duty on system actors (lawyers, participants, mediators, judges, etc.) to assess whether dispute resolution is appropriate must also include mandatory training on family violence and the use of family violence screening tools. The result of a lack of training can lead lawyers to recommend mediation in contexts where it poses a great threat to women and children.

Ultimately, while Bill C-78 proposes significant improvements to the federal Divorce Act, the benefits will only have impact if there is adequate funding for training for those who work in the justice system and such training is mandated by law. Without adequate training on the complexities of family violence and gender inequality, the legislation is not likely to achieve its intended objectives of promoting the best interests of the child, addressing family violence, ending child poverty, and improving access to justice.

*We acknowledge that many of the issues we raise in the Divorce Act do not only impact cis women in hetero partnerships with cis men. We recognize that issues of parenting and family violence impact all people experiencing gender-based discrimination.

Stay Updated

West Coast Leaf

West Coast LEAF is the only organization in BC that uses the law to further gender equality. We work to end gender-based discrimination using equality rights litigation, law reform, and public legal education.